Court sides with parents of students with disabilities in lawsuit over masks in schools

Parents of seven Texas schoolchildren with disabilities filed a federal lawsuit, arguing that Gov. Greg Abbott’s Executive Order GA-38 violates Title II of the Americans with Disabilities Act of 1990 and Section 504 of the Rehabilitation Act of 1973. Executive Order GA-38 prohibits school districts from imposing mask mandates. The plaintiffs requested an injunction that would allow school districts to impose mask mandates.

The plaintiffs argued that GA-38 violates the ADA and Section 504 because it denies students with disabilities equal access to in-person school. The executive order also prohibits schools from considering mask mandates as a reasonable accommodation for students with disabilities who are at greater risk of contracting COVID-19 or suffering severe illness.

They argued that there are no practical education alternatives for students with disabilities who cannot safely return to school in person. Since GA-38 prevents school districts from imposing mask mandates that would make attendance at school safer for those children, it has the effect of “placing children with disabilities in imminent danger or unlawfully forcing those children out of the public school system” in violation of the ADA and Section 504.

The district court agreed, holding that GA-38 conflicts with the ADA and Section 504 because it excludes disabled children from participating in and denies them the benefits of public schools’ programs, services and activities to which they are entitled.

In support of this ruling, the court noted that the spread of COVID-19 poses a greater risk for children with special health needs. Children with certain underlying conditions who contract COVID-19 are more likely to experience severe acute biological effects and to require hospitalization.

Since the start of the 2021-22 school year, 215,799 students have tested positive for COVID-19, according to the state's COVID dashboard for the week ending Nov. 7. At least 45 districts in Texas have temporarily shut down due to COVID-19 outbreaks among students and staff. The Centers for Disease Control and Prevention’s Guidance for COVID-19 Prevention in K-12 Schools, updated on Nov. 5, recommends universal indoor masking for all teachers, staff, students and visitors to K-12 schools, regardless of vaccination status.

The district court issued an order that permanently blocks enforcement of GA-38. The effect of this is that school districts may impose mask mandates if they choose to do so. An appeal and continued litigation of this case is expected, which could change the final result.